After more than a year of protracted negotiations, the European Union Council has finally agreed their Platform Work Directive which could see gig economy workers presumed employees even if they are engaged on a self-employed basis. The proposed legislation includes the following provisions:
- Seven criteria for deciding if a platform worker should be considered an employee, three of which need to be met in order to trigger the presumption of employment
- Any intermediary companies operating between the platform and the platform worker will not be a block on platform workers’ accessing their rights.
- The legal burden of proof to refute the presumption of employment at court lies with the digital/gig platforms
Twenty-two member-states approved the text, while Estonia, Latvia, Germany, Greece and Spain abstained. The seven criteria for the presumption of employment is listed below, three of which will need to be met in order to trigger presumed employment:
- The digital labour platform determines upper limits for the level of remuneration;
- The digital labour platform requires the person performing platform work to respect specific rules with regard to appearance, conduct towards the recipient of the service or
performance of the work;
- The digital labour platform supervises the performance of work including by electronic means;
- The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to choose one’s working hours or periods of absence;
- The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to accept or to refuse tasks;
- The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to use subcontractors or substitutes;
- The digital labour platform restricts the possibility to build a client base or to perform work for any third party.
This is a very interesting list as it is broadly similar to factors that are considered in UK employment status decisions, with much of the focus being on the level of control exerted by the platform ’employer’ over the worker. It seems likely that most the presumption of employment would be triggered for most well-known gig and platform economy businesses in the UK.
It is important to note that the UK is not part of the EU, so this legislation would not automatically be applicable here. However it is likely that the UK government would come under pressure to take some action, particularly as there have been so many high profile employment status cases here over the years – not least Uber which went all the way to the Supreme Court for a decision.
It is expected that the Directive will be finalised before the terms of the current EU Commission and Parliament end in spring 2024.